Wife Had Authority to Transfer Property to Herself Under a Power of Attorney

Planning for spouses is particularly tricky when one is acting one behalf of another and the latter is incompetent.   Transfer of assets to the healthy healthy spouse by the healthy spouse  from the assets of the impaired is troubling, raises the specter of "self-dealing" and often becomes fodder for legal contest.  North Dakota's highest court recently resolved such a case, permitting the transfer. The court ruled that a wife had authority under a power of attorney to transfer property to herself because her husband had an obligation to support her, so the transfers were made for consideration and were not gifts. Estate of Lindvig (N.D., Nos. 20200135 and 20200136, Nov. 19, 2020).

Ralph Lindvig’s Will gave his wife, Dorothy Lindvig, a life interest in his property and, on her death, transferred the property to his brothers. Mrs. Lindvig suffered from mobility issues due to childhood polio. Mr. Lindvig also named Mrs. Lindvig as his agent under a power of attorney. The power of attorney gave the agent the authority to transfer real estate for the purposes of estate planning, including transfers to the agent. It also provided authority to make gifts subject to the approval of a court in order to minimize taxes and maximize the estate for beneficiaries. 

Mr. Lindvig entered a nursing home. To help pay for his care, Mrs. Lindvig sold portions of his property to his brother. She also transferred mineral rights and property to herself. Mr. Lindvig died, and Mrs. Lindvig was the personal representative until her death a year later.

After Mrs. Lindvig’s death, Mr. Lindvig’s estate filed a petition to set aside the transfer of the mineral rights and the property because the transfers diminished the size of Mr. Lindvig’s estate and were not approved by a court. Ms. Lindvig’s estate argued that the transfers were made for consideration in the form of marital contributions and were not gifts. The court determined that the transfers were within Mrs. Lindvig’s authority, and Mr. Lindvig’s estate appealed.

The North Dakota Supreme Court affirmed, holding that the transfers were not gifts because Mrs. Lindvig required support and Mr. Lindvig had an obligation to support her from his property. According to the court, “because the transfers in this case were not gifts, the power of attorney’s gifting provisions do not apply” and Ms. Lindvig “had authority to make the transfers under the power of attorney’s real estate transfer provision.”

A Trustee Has a Duty to Preserve Trust for Beneficiaries, Not to Ensure Payment of Alimony to Grantor’s Ex-Wife

An Iowa appeals court recently ruled that a trustee of his father’s trust is not liable for interference with a contract when he stopped paying his father’s ex-wife alimony because his duty was to preserve the estate for the beneficiaries of the trust, not to ensure that she received alimony. Brownell v. Johnson (Iowa Ct. App., No. 19-0847, Nov. 4, 2020).  The case is an excellent example of the complications that arise in planning, and the complexity of analyzing the legal duties of fiduciaries, in this case a son who acted as both a trustee and an agent under a power of attorney.  

Phillip Johnson and Kathleen Brownell were a married couple when Phillip was diagnosed with cognitive impairment. In anticipation of applying for Medicaid, Phillip transferred all of his assets to a trust with his son, Scott Johnson, as successor trustee. Ms. Brownell filed for divorce, and under the divorce settlement, Ms. Brownell agreed to have no interest in the trust and Phillip agreed to pay her alimony. 

Phillip suffered a farm injury in July 2015, which injury coincided with Phillip’s mental decline.  He transitioned to a nursing home that same month. He continued to live there at the time of the underlying trial in January 2019. Phillip was at first not eligible for nursing home compensation through Medicaid because the Johnson Farm Account Trust had been set up within five years. Phillip became eligible in July 2017—when the five-year lookback period expired. Phillip paid Ms. Brownell alimony until he entered a nursing home, at which point Scott began managing his affairs as agent under a power of attorney.

Ms. Brownell sued Scott for intentional interference with a contract for failing to make the alimony payments. Scott testified that his duty as trustee was to qualify Phillip for Medicaid and preserve the family real estate, not to pay Ms. Brownell who had, as a result of the divorce, become a creditor of Phillip. The parties stipulated that she was owed $25,200 in alimony as of the trial. Kathleen further testified that she borrowed $2500 from a daughter, $4500 from another daughter, and $7698 from her son to live on while she was not receiving her alimony payments. She also testified she incurred about $19,000 in attorney fees and had taken $15,000 in cash value from the life 6 insurance policy to keep the payments up to date on that policy. Kathleen asked for $74,000 in damages. A trial was conducted and the jury found for Ms. Brownell, awarding her damages. 

Scott appealed. 

It is interesting to note that on appeal, the Iowa Academy of Trust and Estate Counsel sought leave to file an amicus brief, which the Iowa Supreme Court granted.  The amicus’s stated purpose in filing an appellate brief was to “assure that [our] disposition of the appeal does not result in the adoption of a standard that the trustee of a trust owes any duty to the creditor of a beneficiary of a trust when the trustee is making distributions to other beneficiaries of the trust in compliance with terms of the trust.” Brownell at p. 2-3. The Iowa Court of Appeals reversed, holding that Scott cannot be held liable under an interference with contract theory as a matter of law. The court ruled that “Scott, acting as the trustee, had to make decisions that were best for the beneficiaries without concerning himself whether those actions interfered with Phillip’s ability to make his alimony payments.” The court similarly found that Scott’s motives of “preserving assets for his father’s care and upholding the estate plan” were not improper under his role as agent. 

The court wrote that 

"...the trust and trustee owed no duty to Kathleen as a creditor of a trust beneficiary (Phillip). “Persons who may incidentally benefit in some manner from the performance of the trust are not beneficiaries of the trust and cannot enforce it.” Restatement (Third) of Trusts § 48 cmt. a (Am. Law. Inst. Oct. 2020 Update). The Iowa Academy of Trust and Estate Counsel raised this concern. And the amicus implores us to find that Scott had no duty to Phillip’s creditors when he, acting in his capacity as trustee in compliance with the terms of the trust, decided what distributions to make and to whom. The undisputed duty of loyalty of a trustee is to the beneficiaries of the trust, not the creditor of any beneficiary. Restatement (Third) of Trusts § 78(1).

First, both Kathleen and Scott confirmed that the trust purpose was twofold. One purpose was to qualify Phillip for Medicaid benefits, which required Phillip to maintain a limited net worth of $2000 and a limited monthly income. The second purpose was to ensure that Phillip’s sons retained the family real estate. To effectuate this purpose, Kathleen admits in her brief that after all real estate was transferred to the trust she “disclaimed and surrendered any and all interest she may have in the Trust.” Also with those goals in mind, Scott maintains he fulfilled his obligations as trustee in the manner he was supposed to; he stopped making income distributions to Phillip so that his father could remain eligible for Medicaid nursing home coverage. Then after the qualification for Medicaid, he transferred the trust assets to the beneficiaries to preserve their interests in the family real estate. Scott notes that he relied on the advice of several attorneys in taking these actions.

.     .     . 

Kathleen acknowledged the trust goals that Scott followed. But at trial and in her brief, she argues in his role as trustee, his failure to pay her interfered with her contract between herself and Phillip. But Kathleen is not a creditor of the trust. Even the jury found the trust owed her nothing. Thus, Scott, operating as trustee, owed Kathleen no fiduciary duty. See Iowa Code §633A.4202(1) (“A trustee shall administer the trust solely in the interests of the beneficiaries, and shall act with due regard to their respective interests.”).

[Second], drilling down to the specific improper conduct of Scott as agent, Kathleen argues Scott “felt entitled to pick and choose which bills ultimately got paid.” It then follows, under Kathleen’s theme, Scott was not acting on behalf of or in Phillip’s best interest. And Kathleen emphasizes that Scott testified he did not like that his father was ordered to pay alimony because he thought it was unfair. So does refusing to pay the principal’s creditor amount to improper conduct by the agent under an interference-of-contract claim? If we step back from this case, we would plow new ground to hold that an agent acting under a power of attorney must pay all bills of the principal or risk a claim of interference with a contract by a creditor. An agent, acting for the principal, might decide to prioritize which bills to pay, and if a creditor finds the action wrongful, the remedy is breach of contract. The motives of Scott in preserving assets for his father’s care and upholding the estate plan, which all parties acknowledged in this case, is not improper under his role as agent. Scott exercised financial discretion to protect his father’s legal rights, and Kathleen failed to prove his sole motivation was to defeat the alimony contract. [citation omitted, emphasis added]. Thus, the record does not support a finding of wrongful conduct against Scott as an agent for Phillip.     

The court noted that Ms. Brownell still has a breach of contract claim for alimony against Phillip. 

Feds Fail to Unlock Nursing Home “SLUSH FUND” to Fight COVID19

A Gray Media investigation has blown the lid off of one the nursing home industry’s most guarded secrets—it’s called the Civil Monetary Penalty Reinvestment Fund.

Nearly half a billion dollars of federally collected nursing home fines have flowed into the fund and now these monies are reportedly languishing in state coffers, accruing interest instead of being used to battle the coronavirus pandemic.  

Families for Better Care’s executive director Brian Lee calls the fund nothing more than a “slush fund” for nursing homes.

He says owners tap into the fund so they can offset operational costs and pad profits all in the name of so-called improvement.  He recalled one instance when “a nursing home that had been fined hundreds of thousands of dollars received a $27,000 grant to buy a bread-making machine, to build a snack stand and to train staff on how to stock the shelves.”  Lee visited the facility and was surprised by what he discovered.  “I expected the aroma of fresh-baked break to greet me when I walked in the door. I got the exact opposite,” he said. “I was immediately bowled over by the smell of urine and feces.”

Lee argues that the fund should be unlocked immediately by the Trump administration so nursing homes can acquire molecular rapid testing machines to prevent COVID19 spread, not so they can be held in reserve for some unhatched profit scheme.  

And the industry largely agrees. 

Mark Parkinson, the American Health Care Association’s president and chief executive officer, told Gray Media that the funds “should be utilized to improve patient care.”  

Nursing home fines should become part of the pandemic solution by “curbing infection-related problems, residents' falls and accidents, and abuse and neglect” rather than, as Parkinson describes, “frivolous” improvement projects that “should have been paid for through the nursing homes’ annual budget.”

But, there is this: CMS last year approved grants to nursing homes to buy an antique popcorn machine, create song playlists for residents and build gardens.  Awesome.

Good Idea: Rhode Island Lifespan Respite Project Work Initiative Increases Access to Respite Care While Training Nursing Students

The Rhode Island Lifespan Respite Project at the Rhode Island Office of Healthy Aging implemented a workforce development initiative, CareBreaks, to match student nurses with low to moderate income families who have no access to subsidized respite care. This model provides free respite care with an increased supply of volunteer respite providers and offers important hands-on experience for nursing students approaching career field entry. The Project developed a Support Family Caregivers Toolkit to assist interested nursing programs and other organizations replicate a similar respite clinical experience program. Marketing materials include a flyer and a video. 

The project recently received national attention from recognition ARCH National Respite Network and Resource Center. Hopefully this type of program will soon be a common solution across the country. 

Music and Memory Program Means Fewer Meds, Better Behaviors

Photo 174795833 © Ljupco | Dreamstime.com

Researchers from the University of California, Davis documented in the August issue of JAMDA the impact of Music and MemorySM (M&M), a non-pharmacological intervention, on nursing home residents with dementia.

The Impact of Music and Memory on Resident Level Outcomes in California Nursing Homes studied 4,107 residents in 265 nursing homes over a three-year period. Debra Bakerjian, PhD, APRN, RN, and her team found that M&M was associated with reductions in psychotropic medications, reduced behaviors, improved mood, less pain, and fewer falls. It is the largest study of M&M to date.

The odds of antipsychotic use declined by about 11%, of antianxiety medications by 17%, and antidepressants by 9% per quarter. In addition, the odds of residents exhibiting aggressive behaviors declined by 20% per quarter, depressive symptoms by 16%, reported pain by 17%, and falls by 8%.

The authors found the reduction in antipsychotics to be “particularly noteworthy, given the documented significant reduction in the use of antipsychotics statewide before the start of this study.”

The M&M program advocates the use of personalized music for older adults with dementia and other cognitive or behavioral symptoms with the goal of improving their quality of life. According to the authors, “While there are a few proven non-pharmacological interventions, activities and music therapy have been shown to decrease overall agitation in nursing home residents.” They cited a 2018 systematic review and meta-analysis that found receptive music therapy, including listening to the participant’s favorite music, was more effective at decreasing agitation and behavioral problems than interactive music therapy.

The authors found that M&M was frequently housed within in the activities department “with limited involvement from other departments.” However, they noted, “Encouraging other departments, especially nursing, to use M&M with residents could increase the frequency and duration of use and overall successful sustainment of the program.”

The project was supported by the Centers for Medicaid & Medicare Services Civil Money Penalty funds as well as the National Institutes of Health’s National Center for Advancing Translational Sciences. It was sponsored by the California Association of Health Facilities.

Click here for more information on the findings above and more details about the study.

Judge Can Not Impose an ‘Unusual’ Condition on a Reversal of a Default Judgment in a Nursing Home Breach of Contract Lawsuit

Nursing homes are proficient in protecting themselves from risk of loss where Medicaid is concerned.  Spouses and children of the Medicaid applicants often find themselves being sued to recover for delays in seeking and obtaining Medicaid.

Courts and the law are often sympathetic to the cause of the nursing home, particularly when admission agreements include provisions making family responsible.  In a recent case, the "sympathy" crossed a line towards activism on behalf of the institution.  Fortunately, on appeal, the ship of equity was righted.

George Brown entered a nursing home and signed an admission agreement, agreeing to apply for Medicaid benefits to pay for his care. Mr. Brown did not submit the necessary information to complete his Medicaid application, so his application was denied. The nursing home sued Mr. Brown and his wife, Gloria Brown, for breach of contract and her for lack of spousal support. Ms. Brown appeared at the initial hearing and argued that Mr. Brown had dementia and did not knowingly sign the agreement. In addition, she claimed he was mistreated at the nursing home.

The judge informed Ms. Brown that she needed to file an answer to the nursing home’s complaint. Ms. Brown never filed an answer, and the judge entered a default judgment against her. Six months later, Ms. Brown filed a request to remove the default judgment because she had been in the hospital and therefore unable to answer the Complaint. The judge granted her request to vacate the default judgment on the condition that she waive any claims against the nursing home to the extent the monetary recovery amount exceeded the amount Mr. Brown owed to the nursing home. The court, in effect, protected the nursing home from any risk of losing more than it was owed! Ms. Brown refused the condition and appealed.

The Massachusetts Appeals Court reversed, holding that the condition imposed by the judge was inappropriate.   Care One Management, LLC v. Brown (Mass. Ct. App., No. 19-P-1165, Oct. 7, 2020). Because the judge did not find that the nursing home suffered any prejudice from the default or the delays, there existed no authority for the court to , in essence, protect the nursing home. According to the court, although the judge made passing reference to Ms. Brown’s delay in fighting the default judgment, the judge “did not explain how or why such factors impacted [the nursing home’s] claim, and did not evaluate and explain whether and to what extent [the nursing home] suffered any prejudice, before imposing the unusual condition on the removal of the default judgment.”

The legal system worked to restore balance in this case.  The wife, though, has attendant cost and expense for which she will never be compensated.  This is just one unavoidable cost of institutional care, dutifully protected by the legal system. 

Survey Suggests 64% of Residents Don't Leave Rooms to Socialize; More Report Profound Loneliness

Nearly two-thirds of nursing home residents do not leave their rooms to socialize anymore since the onset of the coronavirus pandemic, a new survey by healthcare research group Altarum has revealed.

In addition, more than 75% of residents said they have felt lonelier following the ban on visitors implemented by the Centers for Medicare & Medicaid Services (CMS) in mid-March. In September, the agency issued new guidance that laid a framework for providers to resume in-home visitation. The agency cited the emotional and physical toll that the bans had on residents as a reason for the move. 

The survey featured responses from more than 360 residents in 36 states. Findings also showed how much social interactions, both inside and outside nursing homes, have declined during the pandemic. 

Fifty-four (54%) percent of residents said they aren’t participating in any in-home organized activities, while just 13% said they’re eating their meals in the dining room. Prior to the pandemic, 86% of residents said they were participating in activities and nearly 70% were eating in the dining room. 

Additionally, it found that 93% of residents did not leave their nursing home in a given week for routine activities, like shopping or visiting family, since the public health crisis. That number was 42% before the pandemic. 

“Hearing an elder say they feel like they are in prison is heartbreaking. We need to change this,” said Sarah Slocum, co-director of Altarum’s Program to Improve Eldercare.

Strategies to reduce loneliness 

Many facilities have offered more video chats and phone calls for residents and families since the onset of the pandemic, which is a great strategy, but there’s more they can to reduce feelings of loneliness, according to aging expert psychologist Eleanor Feldman Barbera, Ph.D. 

She suggested providers increase their number of recreation staff, if possible, and offer more safely spaced activities for residents. Examples of those types of activities include mobile fishing carts and doorway bingo.

“Engaging the community with a letter writing campaign, photos of pets, etc., is another way to promote connection with people who might not otherwise be involved with the nursing home. It’s also a way of promoting the home to those in the community,” Barbera told McKnight’s Long-Term Care News. 

She also suggested that facilities “make good use of psychologists on the team.”

“They are one of the few staff members whose job it is to actually sit down and talk with the residents for an extended amount of time on a consistent basis. Multiple residents have commented to me during this period about how I’m the only one who visits them,” she said. 

“The psychologist can monitor their moods to be sure their depression isn’t worsening, increase the frequency of sessions, refer them to the psychiatrist for antidepressants if needed, request a compassionate care visit,” she added. 

Barbera noted that providers will likely be dealing with this current situation for “far too long,” which means facilities will have to be creative about how they facilitate visits. 

“Think heated outdoor areas or plexiglass partitions in a corner of the lobby,” she explained.

Source: Mcknight's Long-Term Care News.

Nursing Home Penalties for Noncompliance Expected to Rise

Nursing home operators are on high alert for potential rule changes regarding civil monetary penalties (CMP's) after a lawsuit was filed against federal health agencies Sunday that targets a 2017 rule that relaxed CMPs for providers, this according to an article in McKnight's Long-term Care News.

The AARP Foundation on Tuesday announced the lawsuit filed against the Department of Health and Human Services (DHS) and Centers for Medicare & Medicaid Services (CMS). The litigation was filed on behalf of the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform, which are listed as plaintiffs in the suit. 

The groups are targeting a July 2017 directive from CMS that called on state surveyors to use per instance or per day CMPs for non compliant providers, depending on the timing of the noncompliance in relation to the survey, if residents were harmed or abused, if the facility had good compliance history and whether noncompliance was persistent when imposing a CMP.

The lawsuit alleges the policy change “severely weakened” the Nursing Home Reform Act of 1987 by “allowing nursing facilities to knowingly let deficiencies persist for days, weeks or even months while facing only a per instance CMP.” 

“Because this penalty amounts to a nothing more than the ‘cost of doing business’ or a veritable ‘slap on the wrist,’ CMS has eliminated the incentives for facilities to self-police and take remedial measures at the earliest point possible,” the lawsuit alleges. 

The implications of the lawsuit could mean that providers may face escalated fines if they were out of compliance during the coronavirus public health crisis, warned Wilson Blount, an Alabama based attorney who specializes in regulatory and healthcare law: 

“If the plaintiffs prevail, it is possible CMS could impose CMPs on operators and providers for every day they were out of compliance for COVID-19 infection control practices, as opposed to each instance. This scenario could represent a substantial increase in liability for them.”  

Brendan Williams, lawyer and president and CEO of the New Hampshire Health Care Association, noted that incoming HHS Secretary Xavier Becerra was among those who previously criticized the CMP policy change.

The timeframe for increases, of course, resulting only from litigation is uncertain.  The lawsuit, nonetheless, portends legislative review, and makes policy change more likely. The industry is taking note.  Hopefully, lawmakers will too.  

Trustee Authority to Sell Trust Property to Pay for Settlor’s Long-Term Care Costs

Reversing a lower court, Wyoming’s highest court has ruled that a trustee has authority to sell property in the trust to pay for the settlor’s long-term care even though the trust provided that the property was to be placed in trust for the settlor’s daughter when the settlor died. Jackson v. Montoya (Wyo., No. 2020 WY 116, Sept. 4, 2020).

David Jackson’s parents created a trust and transferred their property to the trust. The trust provided that the trustee had authority to pay the surviving settlor from the trust property, including selling trust property, as necessary to provide for his or her comfort. The trust also provided that on the death of both parents, the property in the trust should be conveyed to a trust for the benefit of Mr. Jackson’s sister, Candyce Montoya, who was authorized to live on the property rent free. Mr. Jackson became the successor trustee of the trust and wanted to sell the property to pay for his father’s long-term care, so he served an eviction notice on Ms. Montoya. Ms. Montoya refused to vacate the property. 

Mr. Jackson sued, seeking a declaratory judgment that the trust was entitled to the property. The trial court interpreted the trust to grant Ms. Montoya a life estate in the property, which prevented Mr. Jackson from selling the property. Mr. Jackson appealed. 

This is an all-too common cause for dispute; does a surviving spouse have the authority to sell property held in a marital trust (or sometimes even a separate trust) that benefits the surviving spouse, where the property is ultimately retained in trust for the benefit of a child?  Typically, the trust is clear and ambiguous, by, for example, reciting an order of intent and authority (for example, "it is my/our intention to provide for each other, and then for the surviving spouse, and then upon the death of both of us to provide for our surviving children, and then for our grandchildren if there is a death of one our children...").  Sometimes, though, a trust is not so clearly crafted, and in this case, ambiguity arose, at least in part, from a specific amendment which the daughter claimed provided a specific and different intention as to specific property for her benefit. 

The Wyoming Supreme Court reversed, holding that Mr. Jackson had authority to sell the property to pay for his father’s long-term care. According to the court, the trust makes clear that the trustee has the right to “sell or deal with any Trust property, in his or her sole discretion, without interference, for the benefit of the surviving settlor’s care, comfort, support, welfare or maintenance, as may be necessary.” The court ruled that when the trust provisions are read as a whole, “it is clear” that Ms. Montoya’s interest “will not vest until the death of the remaining Settlor.” 

Source of original article: "Trustee Has Authority to Sell Property in Trust to Pay for Settlor’s Long-Term Care Costs," Elderlaw Answers (9/21/2120).

Seniors Dying from Isolation Amid Pandemic- One Analysis Suggests Tens of Thousands

Prohibiting visitors to nursing homes has arguably helped limit the spread of COVID-19. But what are the impacts of isolation?  For some the impact has been profound. 

According to a recent Washington Post article, pandemic-related segregation and isolation has killed thousands of Alzheimer’s patients while families watch from afar. According to the Post's research: 

Beyond the staggering U.S. deaths caused directly by the novel coronavirus, more than 134,200 people have died from Alzheimer’s and other forms of dementia since March. That is 13,200 more U.S. deaths caused by dementia than expected, compared with previous years, according to an analysis of federal data....

The consequences are not limited to just deaths from dementia.  Data also shows increased deaths from causes such as hypertension or sepsis, which "are occurring at much higher levels than in the past, experts say, in part because of the pandemic’s indirect effects."  A recent study also demonstrates that the separation and isolation extends beyond just familial separation; all contact with nursing home residents fell by half amid the pandemic.   

Overlooked in America’s war against the coronavirus is a stark reality: isolation and limits on human contact have profound direct and indirect mental and physical health consequences.  For at least one population for which careful government data exists, the consequence is palpable and demonstrative; seniors with dementia are dying not just from the virus but from the very strategy of isolation that is supposed to protect them. 

The effect of social isolation and division are important consideration as states begin to allow visits to nursing home residents.  The article highlights a number of individuals' stories and compares reopening of SNFs in other countries to that of the US.  According to the article:

"countries like the Netherlands have safely reopened their nursing homes without any increase in coronavirus cases by providing ample protective equipment, testing and rigorous protocols."  

Aging in place might provide a more flexible arrangement, but requires serious appreciation and consideration of risks.  

Heartbreaking Study Finds that Contact with Nursing Home Residents Fell by More than Half

Nursing home operators took limiting in-person contact with residents very seriously after the onset of the coronavirus pandemic. Visits of all kinds fell by 53% between March and April, new findings by SeniorLiving.org research revealed.

According to McKnight's Long-term Care News,The Centers for Medicare & Medicaid Services (CMS) issued guidance in mid-March restricting access for all visitor and non-essential healthcare personnel from facilities in an effort to combat and limit the spread of COVID-19.

The findings also showed that between April and June visits rebounded but were still down overall 33% when compared to March. The analysis used de-identified visitor data to nursing homes from 26 states. Researchers noted that because the data is de-identified, total traffic to nursing homes is inclusive of staff, vendors and visitors. 

“While this data does show the significant drop in visitors, it does not quite fully convey that there was almost a 100% decrease in [non-essential] visits that bring great joy to our residents — visits from their family and friends,” Erin Shvetzoff Hennessey, CEO of Health Dimensions Group, told McKnight’s Long-Term Care News. Hennessey explained that non-essential visitors that many facilities stopped included visits from family, beauticians, clergy, entertainment and all non-essential health visits. She noted that “most providers took the guidance very seriously and had even put in place restrictions prior to CMS requirements.”  

“The isolation our residents have felt is heartbreaking, but necessary to keep them safe from a virus that has been so unkind to our residents,” she added. 

Christopher Laxton, executive director of AMDA — The Society of Post-Acute and Long-Term Care Medicine, explained to McKnight's that better visitor insight might have been provided if the data was stratified by type of visitor.  But based on the findings, Laxton said, 

“It appears that the decline in visits in March and April validate nursing homes’ understanding that their patient and resident populations are at extreme and disproportional risk of illness and death from COVID-19 and need to be protected.  The subsequent increase in visits through June is likely multifactorial, including the need to mitigate the devastating effects of long-term social isolation on the nursing home population, among other reasons.” 

McKnight's headline called the findings "Heartbreaking."

Medicaid Applicant Who Did Not Verify Mortgage Balance Is Not Entitled to Benefits

It is vitally important that a Medicaid application be completed properly, and that all required information be provided.  An Ohio appeals court recently held that a Medicaid applicant who did not provide verification of her mortgage balance is not entitled to benefits even though the original mortgage value was higher than the home’s current value. Poindexter v. Ohio Dept. of Job and Family Servs.  (Ohio Ct. App., 5th Dist., No. 2020 CA 00005, August 11, 2020).  In other words, it doesn't matter whether the applicant considers or cam even later establish that the information "might" be considered irrelevant,  burdensome, or non-dispositive, providing complete information is necessary. 

Lucille Poindexter bought a home with a mortgage of $48,023. She entered a nursing home and applied for Medicaid. The value of her home at that time was $36,900. The state requested that Ms. Poindexter verify her current mortgage balance. The request form stated that if Ms. Poindexter was having trouble, she should contact the Medicaid agency for help. The agency contacted her a second time, but Ms. Poindexter did not submit the verification or request assistance. 

The state denied her application for benefits. Ms. Poindexter appealed to court, and the trial court affirmed. Ms. Poindexter appealed, arguing that the evidence showed that she had a mortgage of $48,023, while the house’s value was only $36,900, so her home should not be a countable resource. She also argued that the court improperly placed the burden on her to provide evidence of the mortgage, rather than placing the burden on the Medicaid agency. 

The Ohio Court of Appeals, Fifth District, affirmed, holding that the state properly denied benefits. According to the court, Ms. Poindexter presented no evidence “demonstrating what the balance of the mortgage was as of the time of the application, and thus the agency could not determine the value of the property as of the time of her request for Medicaid assistance.” The court also noted that Ms. Poindexter had the ability to request assistance in obtaining the information, but she did not do that. 

Source: Elderlaw Answers (8/27/20)

As COVID-19 Continues to Ravage Nursing Homes, the California Supreme Court Limits Damages for Care Violations

As COVID-19 continues to ravage nursing homes, the California Supreme Court recently ruled that a state law allowing residents to sue facilities for rights violations limits compensation to $500 regardless of the number of times and the resident's rights are violated, or the manner or nature of the violation. 

The 1982 statute, the Long-Term Care, Health, Safety, and Security Act, was aimed at allowing nursing home residents to sue on the grounds that their rights had been violated. The decision limiting compensation was 5-2 with the two dissenting justices arguing that  the law actually intended to set a $500 cap for each violation of a patient’s rights, not for the all violations identified in the entire suit.

The decision stemmed from a lawsuit filed by John Jarman, who was 91 in 2008 when he slipped and fractured his hip. After surgery, he was transferred to ManorCare of Hemet, CA, a skilled nursing facility of HCR ManorCare Inc. While there, he developed bed sores that took a year to heal after his release, the suit said.  ManorCare staff allegedly often left him in soiled diapers and ignored nurse call lights. He died before the trial, and his daughter continued to pursue his suit.

The majority defended their reading of the statute:

“We do not find that limiting an award to $500 per lawsuit would render the statute ‘toothless,’”

wrote Justice Ming W. Chin, author of the majority decision.  He noted that lawyers for nursing home residents were still entitled to collect their legal fees from the defendants and injunctions could be issued to prevent future abuse. Residents can also sue under different laws, including the Elder Abuse Act, which provides substantially more compensation, according to Chin.

But Justice Mariano-Florentino Cuéllar, joined by Justice Goodwin Liu, wrote the $500 cap was

 “plainly insufficient to fulfill the statute’s purpose to deter and remedy violations of nursing home patients’ rights.  It makes little difference that the majority leaves a few teeth awkwardly hanging in the mouth after pulling most of them out. " 

Justice Cuéllar cited the pandemic in the first paragraph of his 26-page dissent, which was notably longer that the majority ruling, writing that

“Nowhere has the pain of the COVID-19 virus been more acutely felt than in our state’s nursing homes.” 

In a Walnut Creek facility owned by ManorCare, he wrote, 130 people were infected, and 12 have died. The majority’s decision “deprives nursing home residents of an important tool to deter and vindicate violations of their rights,” he charged.

Cuéllar noted that the Elder Abuse Act allows victims compensation only if they can prove “by clear and convincing evidence” that a nursing home was liable for physical abuse, neglect or abandonment and also guilty of “recklessness, oppression, fraud or malice in the commission of this abuse.” “This is not an insubstantial burden,” he wrote.

In Jarman’s case, a jury in 2011 awarded the daughter $100,000 in punitive damages under a different law that was not at issue in Monday’s decision. Under the 1982 law, the jury found the nursing home liable for $95,000 for various violations, an amount that will now likely be reduced to $500.

The trial court eventually struck down the punitive damages, but a court of appeal reinstated them.

Anthony M. Chicotel, staff attorney for California Advocates for Nursing Home Reform, called the decision extremely disappointing and said his group would urge the Legislature to rewrite the law. The pandemic has prevented ombudsmen for nursing home patients from entering the facilities, he said, and residents now are in need of more protection than ever.

“For residents rights, this is a significant blow,” said Chicotel, who filed a friend-of-the-court brief on behalf of Jarman. He likened their predicament to being on a floating, melting iceberg that gets smaller and smaller.

Barry S. Landsberg, who represented ManorCare in the case, told the LA Times that the company was “pleased that the Supreme Court correctly interpreted the resident rights statute” to limit damages to no more than $500 in a civil action.  “That is what the statute says and what the Legislature intended, both when it enacted the law in 1982 and when it amended the law years later,” Landsberg said.

One wonders if this means that a complainant must file separate lawsuits for each violation, and if that will satisfy the court's reading of the Act.  

This article is heavily reliant upon reporting from the LA Times. 

CMS Implementing New Training Protocols Protecting Resident Health and Safety Amid COVID-19

According to an announcement made by the Centers for Medicare & Medicaid Services (CMS):

"Today, under the leadership of President Trump, the Centers for Medicare & Medicaid Services (CMS) is implementing an unprecedented national nursing home training program for frontline nursing home staff and nursing home management. The training is designed to equip both frontline caregivers and their management with the knowledge they need to stop the spread of coronavirus disease 2019 (COVID-19) in their nursing homes. The training announced today will be available immediately to staff of America’s 15,400 Medicare and Medicaid certified nursing homes and focuses on critical topics like infection control and prevention, appropriate screening of visitors, effective cohorting of residents, safe admission and transfer of residents, and the proper use of personal protective equipment (PPE) – all critical elements of stopping the spread of COVID-19.  President Trump first announced the training in late July as part of the Trump Administration’s unwavering commitment to the safety of American seniors living in nursing homes. The training is only the latest in a long list of decisive actions the Trump Administration has taken to safeguard America’s nursing homes."

CMS Administrator Seema Verma wrote in the announcement, the following:

“President Trump has directed us to deploy every resource available to ensure nursing homes are prepared, educated, and ready to keep all our seniors safe from this highly contagious, dangerous disease. CMS is taking unprecedented action to ensure that nursing homes are doubling down on efforts to prevent the spread of the virus. This national training program is just the latest example of our coordinated and aggressive response to this unprecedented situation.” 

Purportedly, the "first-of-its kind" scenario-based training is called the “CMS Targeted COVID-19 Training for Frontline Nursing Home Staff and Management” and it has been designed specifically with COVID-19 in mind. The program features a tailored course that incorporates the most recent lessons learned from nursing homes and teaches frontline staff best practices they can implement to address issues related to COVID-19. The training builds upon results of CMS nursing home inspections and the findings of epidemiological experts from the Centers for Disease Control and Prevention (CDC) who work with nursing homes. The design was also influenced by the findings of federal nursing home task force strike teams, through which experts from CMS and CDC were deployed to nursing homes actively battling COVID-19 outbreaks in hot spot areas over the summer. The strike teams learned that while current regulations were designed to protect the health and safety of residents, the pandemic created an urgent need to directly assist frontline workers with more focused training and guidance than has been used in the past.

The CMS Targeted COVID-19 Training for Frontline Nursing Home Staff & Management is immediately available, with five (5) specific modules designed for frontline clinical staff and ten (10)  designed for nursing home management. The training is available on the CMS Quality, Safety & Education Portal.

The training for frontline staff, called “CMS Targeted COVID-19 Training for Frontline Nursing Home Staff” covers five topics separated into five modules. These modules address some of the most common concerns found by surveyors and strike teams, basic infection control and prevention. The modules are focused on the most urgent needs of frontline nursing home staff and they include:

• Module 1: Hand Hygiene and PPE;
• Module 2: Screening and Surveillance;
• Module 3: Cleaning the Nursing Home;
• Module 4: Cohorting;
• Module 5: Caring for Residents with Dementia in a Pandemic.

The training for management, called “CMS Targeted COVID-19 Training for Nursing Home Management” covers 10 topics separated into 10 modules. These modules are comprehensive, focusing on infection control and cleanliness but also larger institution-wide issues like implementation of telehealth, emergency preparedness, and vaccine delivery. They include:

• Module 1: Hand Hygiene and PPE;
• Module 2: Screening and Surveillance;
• Module 3: Cleaning the Nursing Home;
• Module 4: Cohorting;
• Module 5: Caring for Residents with Dementia in a Pandemic'
• Module 6: Basic Infection Control;
• Module 7: Emergency Preparedness and Surge Capacity;
• Module 8: Addressing Emotional Health of Residents and Staff;
• Module 9: Telehealth for Nursing Homes;
• Module 10: Getting Your Vaccine Delivery System Ready.

To ensure nursing home staff are aware of the training and availing themselves of it, CMS is directing Quality Improvement Organizations (QIOs) – CMS’ nationwide quality improvement contractors – to include the training in the action plans that QIOs develop in collaboration with each nursing home they assist. This will help ensure that nursing homes are building the training into their existing quality improvement efforts.

Finally, while the training announced today is comprehensive, CMS and CDC will also have subject matter experts available on bi-weekly webinars from August 27, 2020, through January 7, 2021, from 4:00 – 5:00 p.m. ET, to answer questions. Registration is required for these Question and Answer sessions. Participants can register on the Zoom webinar registration page.

If a nursing home’s staff is unsure which training module best meets their needs, CMS is offering an online self-assessment tool at www.qioprogram.org to help them identify their needs and suggest the appropriate training modules that best reflect those needs. A certificate of completion is offered for each completed training course.

While the training is targeted to address, and motivated by, the pandemic, the attention to training regarding control of infection is necessary and welcome.